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SCOTUS: A Fish Is Not a 'Tangible Object' for Sarbanes Purposes

By Mark Wilson, Esq. | Last updated on

Destroying a fish isn't a federal crime, the Supreme Court ruled today, in another victory for sanity when it comes to prosecutorial over-charging.

By a surprising 5-4 split, the Court said that the provisions of the Sarbanes-Oxley Act that prohibit destroying a "tangible object" refer to tangible objects used to record information, not any tangible object at all.

A Fish Is Not a Computer

John Yates was cited by an officer of the Florida Fish and Wildlife Service for catching undersized fish. The officer boarded Yates' boat, measured some of the fish he caught, and found them too short, a violation of federal fishing regulations. When Yates returned to port and the officer measured the fish again, he found they were longer than regulations required. The officer theorized that Yates had thrown the too-short fish overboard. Thirty-two months later, Yates got hit with a federal charge of "destroying, concealing, and covering up" evidence under the Sarbanes-Oxley Act, which carried a potential 20-year prison sentence.

Reading the statute in context, the majority said the "tangible object" provision obviously extended only to objects upon which data are recorded, not any physical evidence.

One of the canons of statutory interpretation (noscitur a sociis, for those of you playing along at home) requires items in a list to be read in context. If a list consists of "helicopters, airplanes, and other vehicles," then an "other vehicle" can't be a bicycle, because "other vehicle" must be interpreted in light of the other things in the list. Similarly, 18 USC Section 1519 prohibits destruction of "any record, document, or tangible object," meaning that a "tangible object" under the statute must share something in common with records and documents. A fish is not a document.

The majority also took note of the Sarbanes-Oxley Act itself, which was written to prevent the kind of evidence destruction that accompanied the Enron/Arthur Andersen fiasco of the early 2000s. The concern was with objects on which records are kept, like computers and storage media, not any physical objects at all. "It is highly improbable that Congress would have buried a general spoliation statute covering objects of any and every kind in a provision targeting fraud in financial record-keeping," Justice Ginsburg wrote for the majority.

One Fish, Two Fish, Red Fish, Sarcastic Fish

And yet, what seemed to be a simple exercise in statutory interpretation yielded a four-justice dissenting opinion, led by Justice Kagan. In her opinion, Section 1519 was intentionally broad: Congress intended "to punish those who alter or destroy physical evidence -- any physical evidence -- with the intent of thwarting federal law enforcement."

Rather than adopt a canon of statutory interpretation, Kagan went for the simpler tactic: Whenever Congress is vague about a word, a court defines the word according to its ordinary meaning. "A fish is, of course, a discrete thing that possesses physical form. See generally Dr. Seuss, One Fish Two Fish Red Fish Blue Fish (1960)," she wrote with what's becoming her characteristic panache (perhaps a side-effect of spending all that time with Justice Scalia).

Addressing the statutory interpretation claim, Kagan said even that supports the dissent's construction of the statute: Congress' use of the phrase "any" in conjunction with documents, records, and tangible objects means that Congress intended for the law to encompass "all types of the item." (Here I would quibble and say "any" doesn't necessarily mean all types, but could also mean all individuals of a given type.)

After harshly criticizing the majority's reasoning, Kagan gets to what's really bugging her: The majority is actually concerned with "overcriminalization and excessive punishment in the U.S. Code." Kagan doesn't necessarily disagree, calling Section 1519 "an emblem of a deeper pathology in the federal criminal code," but nevertheless, she says, "we are not entitled to replace the statute Congress enacted with an alternative of our own design."

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